Edward C. Lord to William H. Seward, August 20, 1879

Mr. Lord to Mr. Seward.

Sir: I have the honor to acknowledge the receipt of your dispatch No. 42, dated the 26th ultimo, desiring answers to a series of questions relating to the course of procedure at this consulate in civil cases arising betwixt our people and the Chinese. In reply, I beg to submit the following as my answers:

A.—What is the practice at your consulate in civil cases arising between Chinese and our people? Are such cases tried by the officer of the defendant or by the consul and a native officer sitting as a mixed court?”

When cases are brought by the Chinese against our people I hear them, if lean-not persuade a private settlement, which, in all cases, I endeavor 1o do. When eases are brought by our people against the Chinese, my plan has been, first, to inquire carefully into their merits. If satisfied that they are more or less reasonable, I then usually address a private message to the party complained of, if in the neighborhood, requesting him, or them, to call and see me. If they do so, I explain to them the complaint, and advise a private settlement. In the majority of cases my advice is folio wed. In case the party is at a distance, or in case he is near and does not call, or in case he calls and does not heed my advice, then the case is sent either to the taotai, or to the prefect, or to the magistrate of the district in which the party resides, with the request that said officer will enforce settlement. And in nearly all of such cases settlement has been enforced.

There is no mixed court at this place. In one or two instances Chinese officers have attended cases brought against our people; and in one instance I was present at an examination, or hearing, had before the taotai, when Chinese were defendants. These cases were peculiar, and arose from some hoped-for advantage contemplated in that clause of the treaty pointing out this course of procedure.

“B.—If by the officer of the defendant, what native official sits for the trial in cases where a Chinese is the defendant?”

As I have remarked above, as a general thing, there are no mixed hearing of cases. The consul hears the cases when his people are the defendants, and the Chinese magistrate hears the cases when his people are the defendants. This is the common practice. Exceptions have arisen, and they might again arise. As to the officer that would sit in a mixed hearing when Chinese are defendants, supposing such a case to arise, something, I think, would depend on the nature of the case. It might be the taotai, or it might be the, district magistrate, according to its difficulty or importance.

“C.—Are the courts so held open for the personal appearance of the plaintiff and of his witnesses?”

Chinese courts are hardly courts in our sense of the word. The officer in charge of them is very arbitrary and very summary in his proceedings; and the common opinion is that very little care is taken to secure justice. It is a place where Chinese dread to go, either as complainants or defendants, and they often suffer many wrongs in order to avoid it. No case has occurred where an American has attended such court with witnesses. He might possibly do so by previous arrangement of his consul with the officer, but I think it would seldom happen when a consul acquainted with Chinese matters, as they are understood and transacted here, would request such a course of procedure. It would result in no satisfaction, unless the magistrate were favorably disposed. And if he were favorably disposed, it would rarely happen when such attendance would be needed. The consul, in presenting the claims of his people, would be expected to present with them reasonable evidence of their validity. Unless this evidence could be clearly set aside, the case would be summarily decided. And if it were set aside, the case would be referred back to the consul for revision or withdrawal. In short, such matters are usually settled here, if settled at all, by correspondence rather than by judicial processes.

“D.—Does the consul attend; and, if so, what position is given him as to seat, etc., and what part does he take in the proceedings?”

If a case should occur where the consul should ask for a joint hearing, it would no doubt be arranged where the hearing should be. If at the yamên of the Chinese officer the consul would no doubt be requested to take she seat of honor, and all needed respect would be shown him. If he felt competent to question or cross-question or discuss any point of law or fact, he would no doubt be permitted to do so. The influence he would have would of course depend very much upon himself and upon the disposition of the magistrate towards him.

“E.—If the consul attends, does he take an interpreter; if so, what position is given to the interpreter?”

If the consul were to attend a hearing as supposed above, at the office of the Chinese magistrate, he would be likely to take with him an interpreter. If the interpreter were a foreigner he would certainly be treated with respect if his own conduct were respectful. If the interpreter were a native, judging from my own experience (I use only a native interpreter), I think he would be treated with entire respect. He would sit near his consul and act as the consul’s mouthpiece.

“F.—Is a full and accurate record made of the pleadings aud of the proceedings of the court?”

There may be some record kept of the cases brought before Chinese magistrates, but nothing’, I fancy, that could be called an “accurate record”; and pleadings in their courts are probably unknown, but in case a mixed or joint hearing were agreed upon, arrangements, I presume, could be made to secure such record.

“G.—If so, by whom is the record made; and if by the native assistant of the foreign interpreter, what position is assigned to him?”

Of course nothing has been arranged here for such proceedings; but speaking still of a supposed case, so far as I know, the record could be made by the interpreter’s clerk or assistant; and any officer or assistant attached to the consul would no doubt be treated with all needed respect. His position as to seat would naturally be at the side of the interpreter.

“H.—Is the record made in English and Chinese? If so, how are such records, or any which are made, certified to?”

Still speaking of what might be, records made where a Chinese officer is judge would naturally be in Chinese. They could, of course, be made in English also, were the consul provided with a clerk for the purpose; and either or both records, when made, could be read and interpreted in court; and when so read and interpreted, if assented to by magistrate and consul, they should be held to be full and accurate. Copies, or the originals, could be attested by both judge and assessor.

“I.—To what court do appeals from the decision of the native officer lie?”

The rule here is that all matters of debt, crime, or controversy are prosecuted before the district magistrate. There are no rules, as with us, of carrying cases to higher courts; yet it sometimes happens that appeals are made to the prefect, to the taotai, to the viceroy, and even to Peking. The cases presented to the native authorities by myself in behalf of our people are sometimes sent to one officer and sometimes to another. I am governed in this partly by the nature of the case and partly by the place where the party complained of resides.

“J.—If trials are in mixed courts, what native officer acts?

“K.—What positions are assigned to the consul and those with him?

“L.—What records are made and how are they made?

“M.—What law it taken as binding upon the court?

“N.—How are judgments enforced?

“O.—To what court do appeals lie?

“P.—Generally, is it the practice of other consuls at your port to sit in mixed courts, or is the system of trial in the court of the defendant preferred?”

The above seven questions are all answered in saying that there are no mixed courts here. It may have happened with other consuls, as it has once or twice with me, that there has now and then been a case of joint hearing; but, I think, nothing more.

“Q.—Have you any opinion as to which is the preferable procedure? If so, will you be so good as to state it as fully as possible? Will you please add also any remarks on the general subject which may appear appropriate to you?”

My opinion in regard to mixed courts must be mainly theoretical, as I have had no actual experience in them. But from what I think they are, or at least might be, and from what I know of others, my opinion is in favor of them.

In the first place, they seem to me needed in the interest of justice. Justice is the equal right of plaintiff and defendant; and this right relates not only to the matter in dispute, but to the proceedings of the court to which appeal is made. In other words, the parties should have their case decided according to its merits; and in obtaining such decision they should be exempted from all needless inconvenience, and from all needless expense. Now such justice, I suppose, is seldom had, and seldom expected in Chinese courts; for everybody says, and what everybody says is commonly true, that bribery, corruption, and extortion reign in them and rule over them. Chinese courts have no juries, nor have they any adequate system of pleading or of evidence; and their judges are often ignorant, often unprincipled, and always arbitral Then, too, these tribunals, bad as they are, are surrounded by troops of hungry menials, who suffer no one to pass, either in or out, without exactions. I say “no one,” I mean, of course, no native; for over us they have yet no power. In applying to these courts, we ourselves may have little to fear. But this is not enough. It is an inconvenience and an evil to appeal to courts at all, but it is sometimes necessary; and when it is, we not only want justice for ourselves, but we want no injustice for others, however free we may be from its responsibility.

But in prosecuting the Chinese in their courts, as they now exist, we are not only sure to occasion them this wrong, for which we are not responsible, but we are liable to occasion them another for which we are responsible. In other courts there are heavy penalties, such as exposures, costs, fines, and counter-actions to restrain the prosecution of unjust claims; but defendants in Chinese courts have, with regard to us, very little, if any of this protection. Our prosecutions have too much facility, and when our claims are wanting in justice, as may sometimes happen, great and irreparable wrong is committed.

Then, too, we should not overlook the fact that while we can bring our cases into Chinese courts without the restraints above referred to, the Chinese cannot bring their cases into our courts on the same condition. Our courts are open, they can bring their cases into them if they like, but they must do it with the understanding that, if they fail to make them good, they are liable for costs. This, I think, is entirely right and as it should be. The wrong is on the other side, in the constitution and character of Chinese courts; and for this wrong I see no present remedy but the substitution of mixed courts. And if these courts were substituted, and properly organized. I think we should then have the means of securing substantial justice to all parties.

Justice, of course, is the first and great object to be aimed at in this matter, but it is not the only one. These courts would become institutions of great convenience in matters of record, reference, &c. They would also become institutions of great moral influence—training-schools, so to speak, where this people would gradually learn to understand their rights, and acquire power to assert them.

But these, courts, in order to meet the wants to which I have referred, would need great care in their organization, and great care in the selection of officers to preside over them. In theory all this might be easy, but in-practice it would no doubt meet with many obstacles. There would be the native jealousy, and the native incompetency; and for the present, and I know not for how long a time, there would be this difficulty, that our consulates would find it hard, if not impossible, to furnish officers competent to assist, and have the needed influence in these courts. But with all its difficulties the measure may be practicable, and, if so, I should be glad to see it undertaken.

I have, &c.,